Case 2:08-cr-20585-GER-DAS Document 36 Filed 05/13/2009 Page 1 of 12 UNITED STATES OF AMERICA, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION Plaintiff, Case 2:08-cr-20585-DML-DAS v. D-1 PETER HENDRICKSON, VIO: 26 U.S.C. 7206(1) Defendant. / GOVERNMENT S RESPONSE TO DEFENDANT S MOTION TO DISMISS INDICTMENT The United States Attorney for the Eastern District of Michigan, by and through the undersigned attorneys, files this the Government s Response to Defendant s Motion to Dismiss Indictment. grounds: Statement of the Issues On May 7, 2009, the defendant moved to dismiss the Indictment (No. 29) on two (a) The Indictment purportedly is deficient as it does not allege that the defendant was a person within the meaning of 26 U.S.C. 7206(1); and (b) Even if the Indictment had alleged that the defendant was a person, the defendant as a matter of law cannot be a person for purposes of 26 U.S.C. 7206(1). The defendant s first argument fails as the Indictment properly states the elements of the
Case 2:08-cr-20585-GER-DAS Document 36 Filed 05/13/2009 Page 2 of 12 offense. The defendant s second argument is premature and irrelevant as it challenges the sufficiency of proof to be presented at trial. ARGUMENT I. The Indictment Adequately States an Offense The defendant argues that the Indictment is fatally flawed as it purportedly does not allege all the elements of an offense for violating 26 U.S.C. 7206(1). The argument fails as the Indictment tracks the statutory language, states all the elements of the offense, and unambiguously advises the defendant of the charges against which he must defend. When considering a defendant s Rule 12(b)(3)(B) challenge to the sufficiency of an indictment, the district court must treat the allegations in the indictment as true. See United States v. Hall, 20 F.3d 1084, 1087 (10th Cir. 1994) (citing United States v. Sampson, 371 U.S. 75, 78-79 (1962)). An indictment passes constitutional muster if it, first, contains the elements of the offense charged and fairly informs a defendant of the charges against which he must defend, and second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hamling v. United States, 418 U.S. 87, 117 (1974). With rare exception, an indictment is constitutionally sufficient if it faithfully restates the statutory language. United States v. Superior Growers Supply, Inc., 982 F.2d 173, 176 (6th Cir. 1992). A criminal charge returned by a legally constituted and unbiased grand jury is valid on its face, no more is required. See Costello v. United States, 350 U.S. 359, 363 (1956). 2
Case 2:08-cr-20585-GER-DAS Document 36 Filed 05/13/2009 Page 3 of 12 A. The Indictment Restates the Statutory Language The Indictment is facially valid as it restates the statutory language. Counts One through Four of the Indictment charge the defendant with filing false U.S. Individual Income Tax Returns, Forms 1040, for calendar years 2000, 2002, 2003 and 2004. Counts Five through Ten charge the defendant with filing false Substitute for Form W-2, Wage and Tax Statement, Forms 4852, for calendar years 2000, 2002, 2003, 2004, 2005 and 2006. Although each count concerns a different false document, the counts include substantially similar charging language. Each count identifies the specific document that was false and states the falsity of the document. That is [D]efendant PETER HENDRICKSON did willfully make and subscribe a [document], which was verified by a written declaration that it was made under the penalties of perjury and was filed with the Internal Revenue Service, which said document, defendant PETER HENDRICKSON did not believe to be true and correct as to every material matter in that the said document claimed that defendant PETER HENDRICKSON received zero wages in [year], whereas, as he then and there well knew, he had, in fact, received substantial wages in [year] in the approximate amount of $[amount] Further, each count identifies the specific statute violated, 26 U.S.C. 7206(1). In comparison, Section 7206 states, in pertinent part: Any person who (1) Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter... shall be guilty of a felony 3
Case 2:08-cr-20585-GER-DAS Document 36 Filed 05/13/2009 Page 4 of 12 26 U.S.C. 7206(1). Juxtaposing the charging language of the Indictment with the statutory language shows that the differences between the two are the inclusion of the defendant s name, the specific false document, and its specific falsity. As each count of the Indictment restates the statutory language and adds additional information identifying the specific false document, the Indictment is valid and not subject to dismissal. B. The Indictment States the Elements of the Offense The elements of a Section 7206(1) offense are as follows: The defendant made and subscribed a return, statement, or other document which was false as to a material matter; The return, statement, or other document contained a written declaration that it was made under the penalties of perjury; The defendant did not believe the return, statement, or other document to be true and correct as to every material matter; and The defendant falsely subscribed to the return, statement, or other document willfully, with the specific intent to violate the law. United States v. Bishop, 412 U.S. 346, 350 (1973). In the instant matter, the charging language of each count identifies that the defendant signed a document that was false as to a material matter, that it was made under the penalties of perjury, and that the defendant signed the document willfully and with knowledge that it was not true and correct. Defendant stands accused of willfully subscribing under the penalties of perjury to documents that were false as a material matter and which he knew were false. The charges are legally sufficient to state an offense, and, therefore, should proceed to trial on the merits. 4
Case 2:08-cr-20585-GER-DAS Document 36 Filed 05/13/2009 Page 5 of 12 C. The Indictment Provides Sufficient Information for the Defendant to Defend Against Successive Prosecutions The Indictment presents in a clear manner the charges and offenses for which Hendrickson is charged. Each count involves an individual document and the falsity of each document is alleged. Given the specificity of the allegations, the Indictment presents sufficient facts to afford the defendant the ability to fend off a successive prosecution by pleading a prior acquittal or conviction. II. The Government Need Not Allege or Prove that Defendant was a Person Defendant seeks to dismiss the Indictment on the grounds that it does not allege that he was a person for purposes of Section 7206 and, even if the allegation were included, the government could not prove it if the matter were brought to trial. Contrary to defendant s argument, the Indictment need not allege that the defendant was a person for purposes of 26 U.S.C. 7206(1). Indeed, the frivolousness of defendant s argument is belied by his failure to cite any case law in support of his argument. It would be superfluous to include an allegation in the Indictment that the defendant was a person as that term has been afforded the broadest possible interpretation A citizen or resident of the United States is included in the Internal Revenue Code s definition of a United States person. 26 U.S.C. 7701(a)(30)(A). Courts of Appeal addressing the defendant s argument that a restrictive interpretation of 26 U.S.C. 7343 limits the class of persons who can be prosecuted for criminal violations of the Internal Revenue Code have dismissed it as fatuous, frivolous, inane, and obviously incorrect. See, e.g., United States v. Karlin, 785 F.2d 90, 91 (3d Cir. 1986); United States v. Latham, 754 F.2d 747, 750 (7th Cir. 1985) ( The other jury 5
Case 2:08-cr-20585-GER-DAS Document 36 Filed 05/13/2009 Page 6 of 12 instructions proffered by the defendant are equally inane. Thus we hold that the district court did not err in refusing the other instruction offered by Latham implying that 26 U.S.C. 7343 defining person does not include natural persons. ); United States v. Condo,741 F.2d 238, 239 (9th Cir. 1984) (per curiam) ( [The] assertion that 26 U.S.C. 7343 only applies to business entities and their employees ignores the word includes in the statute delineating the class of persons liable. The word includes expands, not limits, the definition of person to these entities. ); United States v. Rice, 659 F.2d 524, 528 (5th Cir. 1981) (interpreting 26 U.S.C. 7343 in its application to 26 U.S.C. 7203, and stating that 7343 was not intended to exclude individual[s] or to limit the ordinary meaning of the term person so as to exclude individuals or natural persons... from their responsibility to comply with the tax laws. ); United States v. Romero, 640 F.2d 1014, 1016 (9th Cir. 1981). The Sixth Circuit has followed the other circuits and has consistently rejected defendant s absurdly restrictive interpretation of 26 U.S.C. 7343. This Circuit has twice rejected, albeit in unpublished opinions, the argument that the internal revenue laws may be enforced only as to a 1 small, defined class of individuals. In United States v. Maggi, 173 F.3d 430 (Table), No. 98-5570, 1999 WL 96651 (6th Cir. Feb. 5, 1999), the defendant argued on appeal that his conviction for tax evasion, in violation of 26 U.S.C. 7201, was invalid as he was not a person as set forth 26 U.S.C. 7343 for he was a federal employee. The Sixth Circuit, affording the 1 See also United States v. Brookbank, 19 F.3d 19 (Table), Nos. 93-3700, 93-4021, 1994 WL 84836, at * 1 (6th Cir. Mar. 11, 1994) (dismissing an appeal to vacate a conviction for willful failure to file a tax return, in violation of 26 U.S.C. 7203, where the appellant claimed that he was [not] a person required to make a tax return. ). 6
Case 2:08-cr-20585-GER-DAS Document 36 Filed 05/13/2009 Page 7 of 12 argument the attention it deserved, curtly dismissed the claim stating the term person as used in the tax code has been consistently, and plainly, defined as any individual. Maggi, 1999 WL 96651, at *2. In United States v. Boling, 837 F.2d 477 (Table), No. 87-5051, 1988 WL 3477 (6th Cir. Jan. 19, 1988), an appellant convicted of two counts of willful failure to file in violation of 26 U.S.C. 7203 argued that the district court lacked jurisdiction over him as he was not a person as defined in 26 U.S.C. 7343. The Sixth Circuit refused to adopt a cramped interpretation of either 26 U.S.C. 7202 or 7343 stating nothing in Section 7343 limits the ordinary meaning of person so as to exclude individuals such as Boling. Boling, 1988 WL 3477, at *2. Given the uniform rejection of defendant s argument by all circuit courts that have been confronted by it, the motion must be denied. III. Defendant s Challenge to the Government s Proof at Trial is Premature The defendant seeks dismissal of the Indictment on the grounds that the government cannot prove at trial that he is a person for purposes of Section 7206. Whether the defendant is a person is a factual question to be determined at trial. The defendant cites no authority, and the government is unaware of any, that provides for pretrial dismissal of an indictment based on insufficiency of the government s evidence. Indeed, a number of courts have held to the contrary, that a pretrial motion to dismiss an indictment on the basis that the government's evidence is insufficient to prove the crimes charged is premature. See, e.g., United States v. Ferguson, 142 F.Supp.2d 1350, 1353 (S.D. Fla. 2000) (stating [i]n criminal proceedings, there is no summary judgment mechanism ); United States v. Marbelt, 129 F. Supp. 2d 49, 56 (D. Mass. 2000) (stating [a] motion to dismiss an indictment is not a device for a summary trial of the 7
Case 2:08-cr-20585-GER-DAS Document 36 Filed 05/13/2009 Page 8 of 12 evidence, but rather is directed only to the question of the validity of the indictment on its face ); United States v. Clark, 123 F.Supp.2d 314, 317 (D.V.I. 2000) (stating that [t]he sole function of a motion to dismiss is to test the sufficiency of the indictment to charge an offense and that the court may not speculate as to whether the Government can sustain the burden of proving the allegations ); United States v. Forero, 623 F.Supp. 694, 699 (E.D.N.Y. 1985) (stating that [w]here an indictment is valid on its face, and has been returned by a legally constituted and unbiased grand jury, a motion to dismiss the indictment is appropriate only after the Court has been presented with the Government s proof at trial ); United States v. Winer, 323 F. Supp. 604, 605 (E.D. Pa. 1971) (stating that [a] motion to dismiss the indictment is not a device for a summary trial of the evidence, rather [i]t is directed only to the question of the validity of the indictment on its face, and its sole function is to test the sufficiency of the indictment to charge an offense ); United States v. Luros, 243 F. Supp. 160, 165 (N.D. Iowa 1965) (stating that [a] motion to dismiss the indictment is not a device for a summary trial of the evidence and that [t]he sole function of this motion is to test the sufficiency of the indictment to charge an offense ). As the defendant seeks to contest the sufficiency of the government s proof at trial, and not the sufficiency of the Indictment to charge an offense, the motion must be denied. 8
Case 2:08-cr-20585-GER-DAS Document 36 Filed 05/13/2009 Page 9 of 12 denied. CONCLUSION For the reasons set forth above, Defendant s Motion to Dismiss Indictment should be Respectfully submitted, TERRENCE BERG UNITED STATES ATTORNEY Date: May 13, 2009 By: /s/ Michael Leibson Assistant U.S. Attorney 211 W. Fort Street, suite 2001 Detroit, MI 48226 (313) 226-9100 Michael.leibson@usdoj.gov /s/ Mark F. Daly MA Bar No. 640581 Trial Attorney United States Department of Justice, Tax Division P.O. Box 972 Washington, DC 20530 Tel: (202) 514-5150 Fax: (202) 616-1786 Mark.F.Daly@usdoj.gov 9
Case 2:08-cr-20585-GER-DAS Document 36 Filed 05/13/2009 Page 10 of 12 INDEX OF AUTHORITIES Case Citations: Hamling v. United States, 418 U.S. 87 (1974).................................... 2, 3, 4 United States v. Bishop, 412 U.S. 346 (1973)........................................ 3 Costello v. United States, 350 U.S. 359 (1956)....................................... 5 United States v. Maggi, 173 F.3d 430, 1999 WL 96651 (6th Cir. Feb. 5, 1999)............... 2 United States v. Hall, 20 F.3d 1084 (10th Cir. 1994)................................... 2 United States v. Brookbank, 19 F.3d 19, 1994 WL 84836 (6th Cir. Mar. 11, 1994)........... 2 United States v. Superior Growers Supply, Inc., 982 F.2d 173 (6th Cir. 1992)............... 2 United States v. Boling, 837 F.2d 477, 1988 WL 3477 (6th Cir. Jan. 19, 1988)............... 2 United States v. Karlin, 785 F.2d 90, 91 (3d Cir. 1986)................................. 2 United States v. Latham, 754 F.2d 747, 750 (7th Cir. 1985)...............................4 United States v. Condo,741 F.2d 238 (9th Cir. 1984) (per curiam)........................ 5 United States v. Short, 671 F.2d 178 (6th Cir. 1982)................................... 5 United States v. Rice, 659 F.2d 524 (5th Cir. 1981).................................... 5 United States v. Romero, 640 F.2d 1014, 1016 (9th Cir. 1981)........................... 5 United States v. Cruz, 478 F.2d 408 (5th Cir. 1973).................................... 5 Cohen v. United States, 436 F.2d 586 (5th Cir. 1971) (per curiam)........................ 5 United States v. Ferguson, 142 F.Supp.2d 1350 (S.D. Fla. 2000)........................... 5 United States v. Marbelt, 129 F. Supp. 2d 49 (D. Mass. 2000)............................ 5 United States v. Clark, 123 F.Supp.2d 314 (D.V.I. 2000)................................ 5 10
Case 2:08-cr-20585-GER-DAS Document 36 Filed 05/13/2009 Page 11 of 12 United States v. Forero, 623 F.Supp. 694 (E.D.N.Y. 1985)............................... 5 United States v. Winer, 323 F. Supp. 604 (E.D. Pa. 1971)................................ 5 United States v. Luros, 243 F. Supp. 160 (N.D. Iowa 1965).............................. 5 Statute Citations: 26 U.S.C. 7206(1)............................................................. 11
Case 2:08-cr-20585-GER-DAS Document 36 Filed 05/13/2009 Page 12 of 12 CERTIFICATE OF SERVICE This is to certify that on May 13, 2009, an original copy of the foregoing Government s Response to Defendant s Motion to Dismiss Indictment was filed with the U.S. District Court for the Eastern District of Michigan and served on counsel for the defendant by filing the same with the with the Electronic Case Filing system. /s/ Mark F. Daly Trial Attorney 12